The Ninth Circuit Court of Appeals upheld the conviction Monday of Mohamed Mohamud, who intended to set off a car bomb during a 2010 Christmas tree lighting ceremony in Portland, Oregon.

A Somali immigrant, Muhamud was apparently radicalized following a December 2008 security screening at London’s Heathrow Airport in which he felt racially profiled.

Mohamud’s parents later contacted the FBI when Mohamud said he was leaving the country. The parents feared he would return to Somalia, but the FBI later learned Mohamud was exploring an Islamic school in Yemen that a government expert testified was a “stepping stone” to violent jihad.

Mohamud’s father forwarded the FBI an email, saying that Mohamud, a student at Oregon State University, wanted to study Arabic and Islam. The forwarded email address — truthbespoken@googlemail.com — is one investigators had come across while monitoring Amro Al-Ali, a Saudi citizen with suspected ties to terrorism.

Emails from Mohamud called on Allah to send fighters against “the evil zionist-crusader lobbyists who control the world.” Mohamud also expressed support for Osama bin Laden.

In 2010, the FBI prevented Mohamud from boarding a plane at the Portland airport. Mohamud was en route to spend the summer working in Alaska.

Later that year, Mohamud told undercover FBI agents that he wanted to blow up a car by the Pioneer Courthouse Square Christmas Tree Lighting Ceremony in downtown Portland, an annual event that draws thousands of people.

When FBI agents asked Mohamud what would constitute a victory in his plan, he replied, “Try to get most, the most casualties.”

“[I]n general just a huge mass that will… be attacked in their own element with their families celebrating their holidays,” Mohamud elaborated. “And then for later on to be saying this was done for you to refrain from killing our children, women.”

The FBI arrested Mohamud on the day of the intended bombing while he was standing next to a van containing an inert bomb that the undercover agents constructed.

Mohamud made what the Court of Appeals called “a spirited (and supportable)” argument that the FBI engaged in entrapment.

However, while the Ninth Circuit acknowledged in its opinion that “the government’s conduct in this case was quite aggressive at times,” the court ruled, “The complete lack of reluctance on Mohamud’s part to participate in the bombing—indeed, his immediate zeal to see it through—separates this case from those in which courts have found defendants entrapped as a matter of law.”

“Many young people think and say alarming things that they later disavow, and we will never know if Mohamud—a young man with promise—would have carried out a mass attack absent the FBI’s involvement. But some ‘promising’ young people—Charles Whitman, Timothy McVeigh, and James Holmes, to name a few from a tragically long list—take the next step, leading to horrific consequences,” the court concluded.

Court: Writings Indicate Predisposition That Precludes Entrapment

In addition to his communication with Al-Ali, Mohamud exchanged 150 emails with Samir Khan, an American who published the online magazine Jihad Recollections.

According to the Ninth Circuit,

Mohamud wrote four articles for Jihad Recollections. Among other things, the articles recommended physical exercise to prepare for war with the West and analyzed Europe’s vulnerability to a jihadi attack. Mohamud’s initial drafts of these articles contained more incendiary content. For example, Mohamud praised the proficiency of the September 11, 2001, hijackers who “hit them so fast the Americans became dumbfounded,” the 2008 Mumbai attackers, who were “a great display of quickly entering the arena of battle and just decimating the kuffar [unbelievers],” and the fighters in Afghanistan who attacked landing American helicopters and then “finish[ed] off the wounded American soldiers.” Mohamud also prayed for Allah to help the reader “prepar[e] you to meet Allah as a martyr” and included a photograph of the Twin Towers burning during the September 11th attacks. Khan removed this more inflammatory material from the final versions of Mohamud’s articles.

Khan was killed in Yemen during the 2011 drone assassination of another U.S. citizen, Anwar al-Awlaki. That attack is highlighted in Jeremy Scahill’s book Dirty Wars and the documentary by the same name.

Unprompted, Mohamud provided copies of his articles to undercover agents shortly after his foiled attempt to travel to Alaska in 2010.

“To avoid a finding of entrapment, the government must prove that… Mohamud was predisposed to commit the crime before government agents contacted him,” the court explained Monday.

“Mohamud’s Jihad Recollections articles—both the draft and final versions—provided ample evidence of his predisposition to carry out the charged crime,” the three-judge panel ruled. “Although these articles may come across as a teenager trying to talk tough, they were enough to support the jury’s finding, and for us to conclude that Mohamud was not the ‘otherwise innocent person’ that the entrapment-as-a-matter-of-law doctrine requires.”

“We doubt that the potential terrorists who are available to be recruited by Al Qaeda or similar groups have already ‘formed’ a ‘design’ to bomb specific targets,” the Second Circuit Court of Appeals wrote in United States v Cromitie. “Their predisposition is to have a state of mind that inclines them to inflict harm on the United States, be willing to die like a martyr, be receptive to a recruiter’s presentation, whether over the course of a week or several months, of the specifics on an operational plan, and welcome an invitation to participate.”

“Like Mohamud, Cromitie argued that the government took advantage of his religious affiliation, but the court explained that a government agent ‘is entitled to probe the attitudes’ of an individual who ‘volunteers that he wants to ‘do something to America’ . . . to learn whether his religious views have impelled him toward the violent brand of radical Islam that poses a dire threat to the United States,’” the Ninth Circuit quoted.

Mohamud Did Not Express Reluctance to Execute Plan

When undercover agents met with Mohamud in 2010, they suggested several peaceful ways that he could be a good Muslim.

Instead, Mohamud said that he had “planned to wage war within the United States” and wanted to become “operational.” He suggested the location and style of the bombing.

“[T]hese people who live in this country are the most evil people on earth,” Mohamud told the agents.

When they showed him a mock jihadi bombing video produced by the FBI, Mohamud called it “beautiful.”

Mohamud bought components for his bomb, rented an apartment, and rented a storage unit for the van, all at the instruction of the agents and using $2,800 of FBI money. This suggests entrapment.

However, the court noted that of the factors determining predisposition as it relates to entrapment, the most important is the defendant’s reluctance to engage in criminal activity.

Undercover agents reminded Mohamud multiple times that he did not have to go through with the bombing.

“Despite being provided numerous opportunities to deviate from or terminate the plan, Mohamud never displayed any reluctance in going through with a horrific attack that would have killed and maimed countless people, including young children,” the court wrote. “Indeed, he expressed great enthusiasm in seeing it through. He picked the target—the Pioneer Courthouse Square Christmas Tree Lighting Ceremony—and planned where the van containing the explosives would be parked.”

Three weeks before the intended bombing, Mohamud filmed a “goodbye” video for other jihadis at the recommendation of the undercover agents. He concluded the video with a poem, saying, “Assassinate their leaders, commanders, and chiefs./From your brother to his brother a poem in brief.”

After Mohamud’s arrest, the FBI found an al-Qaeda video and videos of the tree lighting from 2007 and 2008 on his computer. They also found fresh communication with Al-Ali in Mohamud’s wallet.

ACLU Objects to Warrantless Collection of Mohamud’s Emails

The Foreign Intelligence Surveillance Act (FISA) requires the government to show probable cause that a target is a foreign power or an agent of a foreign power.

FISA was amended by the USA PATRIOT Act and amended again in 2008. Among the 2008 amendments, section 702 allows for the warrantless surveillance of “non-U.S. persons located abroad.”

The FBI was investigating Al-Ali under section 702 when it came across Mohamud’s emails.

The government acknowledged between the jury’s verdict and Mohamud’s sentencing that some of the evidence used against him during the trial had been collected under section 702. Such notice is supposed to be supplied prior to trial.

Mohamud and the ACLU argued that this evidence violated his Fourth Amendment rights and should be suppressed.

The Court of Appeals ruled that the late 702 disclosure did not prejudice Mohamud.

“Although § 702 potentially raises complex statutory and constitutional issues, this case does not,” the court wrote. “All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected.”

The U.S. Supreme Court held in United States v Verdugo-Urquidez that the “Fourth Amendment does not apply to the search and seizure by United States agents of property owned by a nonresident alien and located in a foreign country.”

“[W]hether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful,” the U.S. District Court of New York ruled in United States v Hasbajrami.